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SRI LANKA: A man is killed after being tortured by the Kiribathgoda police

September 20, 2010

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

Urgent Appeal Case: AHRC-UAC-144-2010



20 September 2010

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SRI LANKA: A man is killed after being tortured by the Kiribathgoda police

ISSUES: Torture; extrajudicial killing; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information that a man who was severely tortured by officers of the Kiribathgoda Police Station later succumbed to his injuries. Following his arrest the officers of the police station turned over his body to the Teaching Hospital of Ragama. Later at the inquest two police officers were identified by a witness as the perpetrators. The policy enforced by the Sri Lankan police of killing suspects after arrest clearly shows the inability of the law enforcement agencies to prosecute criminals within a rule of law system. Anyone arrested by the Sri Lankan police are at severe risk of torture and death at their hands.

CASE NARRATIVE:

According to the information we received Jayasekara Arachchige Roshan Jayasekara, (35) of Ranaviru Niwasa, Morakatiara, Beliattha was arrested by the Ragama Police Station and handed over to the police station of Kiribathgoda on 25 August 2010.

Jayasekara was arrested due to an allegation made by a group of people of the theft of a mobile phone at the Ragama Railway Station. These Ragama police officers then handed Jayasekara over to the officers of the Kiribathgoda Police Station for further investigation.

On 26 August, a newly recruited and therefore inexperienced officer of the Kiribathgoda police brought Jayasekara's body to the Ragama Teaching hospital. He told the hospital staff that he did not wish to be named. The following day Police Constable Dissanayaka (570) of the Kiribathgoda Police Station voluntarily registered as the person who handed over the body to the hospital.

The post mortem examination, which was held by the Judicial Medical Officer (JMO) at the Ragama Teaching Hospital, revealed marks of numerous blunt force trauma injuries.

Before the post mortem examination was held the officers of the Kiribathgoda Police Station produced a woman who claimed to be an aunt of the deceased to verify the identity of the deceased but the JMO refused to accept her when she was unable to provide specific details. The police officers then produced another woman who claimed to be the deceased's sister who was then accepted. This woman was brought from Belliattha at the expense of the officers.

As the deceased's relatives are unable to afford to take Jayasekara's body to Moraketiara they left it at the mortuary at Ragama Hospital to be buried at the government's expense.

When the inquest into Jayasekara's death was held at the Magistrate's Court of Colombo an identification parade was held and three police officers were produced. Two of them, Percy Dissanayaka and Roy Rathnayaka were identified by a witness as the officers who brought the victim to Tangalle and assaulted him with poles. The witness categorically stated that the victim was in good health before he was arrested by the police officers.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission has reported innumerable cases of arbitrary arrest, detention and torture of citizens at the hands of the police which is illegal under international and local law and which have taken place at different police stations in the country over the past few years. The Asian Human Rights Commission has observed that the Sri Lankan police has used torture as an instrument to terrorize innocent persons and harass the public.

The Constitution of Sri Lanka has guaranteed the right freedom from torture. According to Article 11 of the Constitution 'No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'.

Court of Appeal of Sri Lanka
In the case of Leeda Violet and Others v. Vidanapathirana, OIC, Police Station, Dikwella and others (3 SLR 1994 377), in a Habeas Corpus application in the Court of Appeal of Sri Lanka observed that when there is an established fact that a person was arrested, then it is the duty of the Officer-in-Charge (OIC) to explain the fate of the detainee and what happen to him while in the custody with the relevant entries from the books maintained at the Police Station.
As per the Silva J,

"In other words, there is no basis whatever for their arrest and custody. The 1st Respondent who admits having visited the place of arrest at the alleged time denies the act of arrest as alleged by the Petitioners. His denial has been disbelieved by the learned Magistrate. Learned Magistrate has correctly observed that if the 1st Respondent visited the place for any official act in connection with any investigation or peace keeping operation, he could have produced the relevant entries from the books maintained at the Police Station. The suggestion of the 1st Respondent appears to be that whatever operation that was carried out by the authorities at the time in question, at Neelwella, was the responsibility of the Army and not of the Police. The shifting of responsibility from the Police to the Army and vice versa, is of little solace or comfort to the Petitioners. Their evidence discloses a harrowing tale where they have seen their sons taken to the Police Station and kept there for several days. For all intents and purposes their sons have disappeared from the face of the earth after 4 days. The denial of arrest and custody, by the 1st Respondent, who is well identified by the witnesses, as a person known to them, has not commended itself to the learned Chief Magistrate. Certainly, that denial does not commend itself, as being worthy of any credit, to this Court. It was in these circumstances that a rule nisi was issued on the 1st Respondent and the Inspector General of Police to disclose any material in their control as to the whereabouts of the corpora. The rule has been answered only by a repetition of the denial which has already been rejected by the learned Chief Magistrate."

Supreme Court of Sri Lanka
In the case of Sriyani Silva v. Iddamalgoda, OIC Payagala & Others- (2003) 2 SLR 63, as per Fernando J,
"I hold that Article 11 (read with Article 13(4)) recognizes a right not to be deprived of life-whether by way of punishment or otherwise-and, by necessary implication, a right to life. That right must be interpreted broadly, and the jurisdiction conferred by the Constitution on this Court for the sole purpose of protecting fundamental rights against executive action must be deemed to have conferred all that is reasonably necessary for this Court to protect those rights effectively. (ch. Article 118(b))"

In another case where person was arrested and died after he was tortured by the prison officers Supreme Court observed as follows:

S.C. (FR) Application No. 700/2002, Case of Lama Hewage Lal, Wewalage Rani Fernando and others v. Officer-in-Charge, Minor Offences, Seeduwa Police Station, Seeduwa and others,

As per Bandaranayake J,

"Admittedly in the present case under consideration, the deceased had not been in the prison for even a few hours before he was assaulted by some of the officers. In a matter of less than 48 hours after being brought into the Negombo prison the deceased had passed away. The medical evidence, clearly indicates that the deceased could not have sustained the injuries he had suffered due to an 'Ordinary force being used for restraining' considering the fact that the deceased was in good health at the time he was handed over to the Negombo prison; that he was severely assaulted by some of the prison officials; that his death had occurred within a short period thereafter and the circumstances on which the deceased has come to his death, it is apparent that his death was as a result of the assault on him while he was at the Negombo Prison".

Alarming policy of Sri Lankan police of killing the suspects after arrest instead of allowing the court to try them in accordance with the law

The AHRC has recorded hundreds of cases where people were tortured and killed after they were arrested by the police. The Presidential commissions of investigation of cases of disappearances by the Sri Lankan governments have officially recorded more than thirty six thousand cases from throughout the country only between 1988 -1991 which exposed the practice of the Sri Lanka Police of arresting innocent persons, detaining, torturing them and then finally killing them. The AHRC has classified this practice of extrajudicial killing by the state authorities as one of the endemic problems in Sri Lanka.

In the recent past the Sri Lankan police have adopted a policy of killing suspects in the name of eliminating organized crime. However, few if any of these cases are investigated by the police. Even the judiciary of the country has not shown an interest in bringing justice in these incidents.

The reported cases clearly show all the necessary legal elements of the systematic and widespread practice of killing innocents after arrest by police officers.

This whole practice happens despite the Departmental Orders of the Sri Lanka police which expressly rules that OICs of the police stations are responsible to protect the detainees after their arrest. The officers are supposed to maintain public records on the health, foods, all the movements and behaviors of detainees.

The Constitution of the country expressly only allow the judiciary to make punishments to those who have found guilty after fair trial. But this practice of killing detainees shows how the police officers torture detainees as punitive action sometime before going to the extent of killing them.

This practice imposes against the poorest of the poor in the country. It necessarily used to harass and terrorize the public to make them silent while many of the fundamental rights and democratic rights guaranteed even by the Constitution of the country were curtail vehemently. One the other hand this shows how the state of Sri Lanka failed to fulfill its state responsibility to international human rights conventions with UN domestically getting implemented. Adopting of policy of killing citizens in the name of combating criminals clearly shows state unwillingness of respecting internationally accepted human rights and norms. The cases in question show the inability of the state law enforcement agencies that they are no longer willing and able to implement the rule of law in the country instead of maintain the law and order of the country. The policy imposed by the Sri Lankan police of killing suspects after get them arrest clearly shows the unwell of law enforcement agencies to prosecute the criminals within rule of law system. Innocent victims who get arrested are in danger in the hand of police officers in Sri Lanka.

Furthermore, Sri Lanka has signed and ratified the International Covenant on Civil and Political Rights (ICCPR). Nevertheless the lack of protection offered to those who are willing to take cases against abusive police officers and the state authorities, means that the law is under-used continues to be employed as a tool by the police to harass people. This not only takes a long-term toll on the victim and his or her family, but on society as a whole, by the undermining of civilian respect for the law and encouraging impunity.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was signed by the State of Sri Lanka and ratified on 3 January 1994. Following state obligations Sri Lanka adopted Act No. 22 of 1994 the law adopted by the Sri Lankan parliament making torture a crime that can be punishable for minimum seven years and not less than ten years on being proven guilty. The Attorney General of Sri Lanka is supposed to file indictments in the case where credible evidence is found on the torturing of people by state officers.

Furthermore, the Asian Human Rights Commission has continuously exposed the way the witness and the victims are getting harassed and on some occasions even killed to suppress the justice. Furthermore we have urged the State of Sri Lanka to adopt a law for the protection of witness protection.

SUGGESTED ACTION:
Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of torturing and killing by the police perpetrators, and the prosecution of those proven to be responsible under the criminal law of the country. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department.

Please note that the Asian Human Rights Commission has already written separate letters to the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the United Nations and Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions on this regard.

To support this appeal please click here:  

SAMPLE LETTER:

Dear ________,

SRI LANKA: A man is killed after being tortured by the Kiribathgoda police

Name of Victim: Jayasekara Arachchige Roshan Jayasekara, of 'Ranaviru Niwasa', Morakatiara, Beliattha

Name of alleged perpetrators:
1. Mr. Percy Dissanayake
2. Mr. Roy Rathnayake

Both are attached to the Kiribathgoda police
 
3. Police officers attached to the police station of Kiribathgoda

Date of incident: 25 August 2010
Place of incident: Kiribathgoda Police Division

I have learned that Jayasekara Arachchige Roshan Jayasekara, (35) of Ranaviru Niwasa, Morakatiara, Beliattha was arrested by the Ragama Police Station and handed over to the police station of Kiribathgoda on 25 August 2010.

Jayasekara was arrested due to an allegation made by a group of people of the theft of a mobile phone at the Ragama Railway Station. These Ragama police officers then handed Jayasekara over to the officers of the Kiribathgoda Police Station for further investigation.

On 26 August, a newly recruited and therefore inexperienced officer of the Kiribathgoda police brought Jayasekara's body to the Ragama Teaching Hospital. He told the hospital staff that he did not wish to be named. The following day Police Constable Dissanayaka (570) of the Kiribathgoda Police Station voluntarily registered as the person who handed over the body to the hospital.

The post mortem examination, which was held by the Judicial Medical Officer (JMO) at the Ragama Teaching Hospital, revealed marks of numerous blunt force trauma injuries.

Before the post mortem examination was held the officers of the Kiribathgoda Police Station produced a woman who claimed to be an aunt of the deceased to verify the identity of the deceased but the JMO refused to accept her when she was unable to provide specific details. The police officers then produced another woman who claimed to be the deceased's sister who was then accepted. This woman was brought from Belliattha at the expense of the officers.

As the deceased's relatives are unable to afford to take the Jayasekara's body to Moraketiara they left it at the mortuary at Ragama Hospital to be buried at the government's expense.

When the inquest into Jayasekara's death was held at the Magistrate's Court of Colombo an identification parade was held and three police officers were produced. Two of them, Percy Dissanayaka and Roy Rathnayaka were identified by a witness as the officers who brought the victim to Tangalle and assaulted him with poles. The witness categorically stated that the victim was in good health before he was arrested by the police officers.

I request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the allegations torture and murder of the victim. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Mahinda Balasuriya
Inspector General of Police
New Secretariat
Colombo 1
SRI LANKA
Fax: +94 11 2 440440 / 327877
E-mail: igp@police.lk

2. Mr. Mohan Peiris
Attorney General
Attorney General's Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436421
E-mail: ag@attorneygeneral.gov.lk

3. Secretary
National Police Commission
3rd Floor, Rotunda Towers
109 Galle Road
Colombo 03
SRI LANKA
Tel: +94 11 2 395310
Fax: +94 11 2 395867
E-mail: npcgen@sltnet.lk or polcom@sltnet.lk

4. Secretary
Human Rights Commission
No. 36, Kynsey Road
Colombo 8
SRI LANKA
Tel: +94 11 2 694 925 / 673 806
Fax: +94 11 2 694 924 / 696 470
E-mail: sechrc@sltnet.lk


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-144-2010
Countries :
Issues :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.